Freedom of Information Act (United States)

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With the ongoing stress on both constitutional and inherent rights of American citizens and the added assertion of government subservience to the individual, some, particularly John Moss, thought it was necessary for government information to be available to the public.

However, due to the sensitivity of some government information and private interests, others, notably President Lyndon B. Johnson, believed that certain types of government information should remain secret. Therefore, Congress attempted to enact a Freedom of Information Act in 1966 that would effectively deal with requests for government records, consistent with the belief that the people have the “right to know” about them. The Privacy Act of 1974 additionally covered government documents charting individuals.

However, it is in the exemptions to solicitation of information under these acts that problems and discrepancies arise.

The act explicitly applies only to executive branch government agencies. These agencies are under several mandates to comply with public solicitation of information. Along with making public and accessible all bureaucratic and technical procedures for applying for documents from that agency, agencies are also subject to penalties for hindering the process of a petition for information. If “agency personnel acted arbitrarily or capriciously with respect to the withholding, [a] Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding.”[6] In this way, there is recourse for one seeking information to go to a federal court if suspicion of illegal tampering or delayed sending of records exists. However, there are nine exemptions, ranging from a withholding “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and “trade secrets” to “clearly unwarranted invasion of personal privacy.”[6] The nine current exemptions to the FOIA address issues of sensitivity and personal rights. They are (as listed in Title 5 of the United States Code, section 552):[7]

(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;[8]

related solely to the internal personnel rules and practices of an agency;[8]

specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;[8]FOIA Exemption 3 Statutes

trade secrets and commercial or financial information obtained from a person and privileged or confidential;[8]

inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency;[8]

personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;[8]

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;[8]

contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;[8] or

geological and geophysical information and data, including maps, concerning wells.[8]

The Freedom of Information Act was initially introduced as the bill Template:USBill in the 89th Congress. When the two-page bill was signed into law it became Template:USStatute but had an effective date of one year after the date of enactment, or July 4, 1967. The law set up the structure of FOIA as we know it today.

But that law was actually repealed. During the period between the enactment of the act and its effective date, Title 5 of the United States Code was enacted into positive law.[10] For reasons now unclear but which may have had to do with the way the enactment of Title 5 changed how the law being amended was supposed to be cited, the original Freedom of Information Act was replaced. A new act in Template:USStatute (originally Template:USBill in the 90th Congress) repealed the original and put in its place a substantively identical law. This statute was signed on June 5, 1967 and had the same effective date as the original statute: July 4, 1967.

Following the Watergate scandal, President Gerald R. Ford wanted to sign FOIA-strengthening amendments in the Privacy Act of 1974, but concern (by his chief of staff Donald Rumsfeld and deputy Richard Cheney) about leaks and legal arguments that the bill was unconstitutional (by government lawyer Antonin Scalia, among others) persuaded Ford to veto the bill, according to documents declassified in 2004.[11]
However, Congress voted to override Ford's veto, giving the United States the core Freedom of Information Act still in effect today, with judicial review of executive secrecy claims.[12][13]

These amendments to the FOIA regulate government control of documents which concern a citizen. It gives one “(1) the right to see records about [one]self, subject to the Privacy Act's exemptions, (2) the right to amend that record if it is inaccurate, irrelevant, untimely, or incomplete, and (3) the right to sue the government for violations of the statute including permitting others to see [one’s] records unless specifically permitted by the Act.”[14] In conjunction with the FOIA, the PA is used to further the rights of an individual gaining access to information held by the government. The Justice Department's Office of Information and Privacy and federal district courts are the two channels of appeal available to seekers of information.[15]

Between 1982 and 1995, President Reagan's Template:Executive Order allowed federal agencies to withhold enormous amounts of information under Exemption 1(relating to national security information), claiming it would better protect the country and strengthen national security.[16]

The outcry from the effect that the Reagan Order had on FOIA requests was a factor in leading President Clinton to dramatically alter the criteria in 1995.[17]

The FOIA amendments were a small part of the bipartisan Anti-Drug Abuse Act of 1986. Congress amended FOIA to address the fees charged by different categories of requesters and the scope of access to law enforcement and national security records. The amendments are not referenced in the congressional reports on the Act, so the floor statements provide an indication of Congressional intent.[18]

Between 1995 and 1999, President Clinton issued executive directives (and amendments to the directives) that allowed the release of previously classified national security documents more than 25 years old and of historical interest, as part of the FOIA.[19] This release of information allowed many previously publicly unknown details about the Cold War and other historical events to be discussed openly.[17]

The Electronic Freedom of Information Act Amendments of 1996 (E-FOIA) stated that all agencies are required by statute to make certain types of records, created by the agency on or after November 1, 1996, available electronically. Agencies must also provide electronic reading rooms for citizens to use to have access to records. Given the large volume of records and limited resources, the amendment also extended the agencies' required response time to FOIA requests. Formerly, the response time was ten days and the amendment extended it to twenty days.[20]

In 2002, Congress passed the Intelligence Authorization Act for Fiscal Year 2003, Template:USPL.[23] Within this omnibus legislation were amendments to the FOIA (pertaining mainly to intelligence agencies) entitled "Prohibition on Compliance with Requests for Information Submitted by Foreign Governments":[24]

In effect, this new language precluded any covered U.S. intelligence agency from disclosing records in response to FOIA requests made by foreign governments or international governmental organizations. By its terms, it prohibits disclosure in response to requests made by such non-U.S. governmental entities either directly or through a "representative".[25] This means that for any FOIA request that by its nature appears as if it might have been made by or on behalf of a non-U.S. governmental entity, a covered agency may inquire into the particular circumstances of the requester in order to properly implement this new FOIA provision.[23]

The agencies affected by this amendment are those that are part of, or contain "an element of", the "intelligence community". As defined in the National Security Act of 1947 (as amended), they consist of the CIA, the National Security Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Reconnaissance Office (and certain other reconnaissance offices within the Department of Defense), the intelligence elements of the Army, the Navy, the Air Force, and the Marine Corps, the FBI, the Department of the Treasury, the Department of Energy, and the Coast Guard, the Department of Homeland Security, the Bureau of Intelligence and Research in the Department of State, and "such other elements of any other department or agency as may be designated by the President, or designated jointly by the Director of Central Intelligence and the head of the department or agency concerned, as an element of the intelligence community".[23][26]

President Bush signed the Openness Promotes Effectiveness in our National Government Act of 2007, Template:USPL, on December 31, 2007. This law, also known as the "OPEN Government Act of 2007", amended the federal FOIA statute in several ways.[27] According to a White House press release, it does so by:

establishing a definition of "a representative of the news media;"

directing that required attorney fees be paid from an agency's own appropriation rather than from the Judgment Fund;

prohibiting an agency from assessing certain fees if it fails to comply with FOIA deadlines; and

it recognizes electronic media specifically and defines "News Media" as "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience."

it extends the 20 day deadline by allowing for up to 10 days between the FOIA office of the agency and the component of the agency holding the records and specifically allows for clarification of requests by the FOIA office (Effective 12/31/2007).

it calls for each agency to designate a FOIA Public Liaison, "who shall assist in the resolution of any disputes" (Effective 12/31/2008).

it requires agencies to assign tracking numbers to FOIA requests that take longer than 10 days, and to provide systems determining the status of a request.

it codifies and defines annual reporting requirements for each agency's FOIA program.

it specifically addresses data sources used to generate reports; "shall make the raw statistical data used in its reports available electronically..."

it redefines the definition of an agency "record" to include information held for an agency by a government contractor.

On December 29, 2009, President Barack Obama issued Executive Order 13526, which allows the government to classify certain specific types of information relevant to national security after it has been requested.[29] That is, a request for information that meets the criteria for availability under FOIA can still be denied if the government determines that the information should have been classified, and unavailable. It also sets a timeline for automatic declassification of old information that is not specifically identified as requiring continued secrecy.

A major issue in released documentation is government "redaction" of certain passages deemed applicable to the Exemption section of the FOIA. Federal Bureau of Investigation (FBI) officers in charge of responding to FOIA requests "so heavily redacted the released records as to preclude needed research."[15] This has also brought into question just how one can verify that they have been given complete records in response to a request.

This trend of unwillingness to release records was especially evident in the process of making public the FBI files on J. Edgar Hoover. Of the 164 files and about eighteen thousand pages collected by the FBI, two-thirds were withheld from Athan G. Theoharis and plaintiff, most notably one entire folder entitled the "White House Security Survey." Despite finding out that the Truman Library had an accessible file which documented all the reports of this folder, the FBI and Office of Information and Privacy put forth "stony resistance" to the FOIA appeal process. (I–pg. 27) SomeTemplate:Who argue that it was not even this sixteen year series of three appeals to the Justice Department which gained a further opening of the files, but rather the case of Department of Justice v. Landano which spurred on a break in stolid FBI opposition.

A murder trial decided in 1993, Department of Justice v. Landano, Template:Scite, involved what was alleged to be a felony murder committed during a group burglary by defendant Landano. Justice Sandra Day O'Connor wrote the unanimous opinion. "In an effort to support his claim in subsequent state court proceedings that the prosecution violated Brady v. Maryland, Template:Scite, by withholding material exculpatory evidence, he filed Freedom of Information Act (FOIA) requests with the FBI for information it had compiled in connection with the murder investigation."[34]

In defense, the FBI put forth a claim that the redacted sections of the documents requested were withheld in accordance with FOIA regulations protecting the identity of informants who gave information regarding case details. However, O'Connor ruled that those who supplied information had no need to remain anonymous in the court setting. "To the extent that the Government's proof may compromise legitimate interests, the Government still can attempt to meet its burden with in camera affidavits." The court thus remanded the case to the Circuit Courts and rejected the FBI's claim of confidentiality as being a valid reason to withhold information.

"While most individual sources may expect confidentiality, the Government offers no explanation, other than administrative ease, why that expectation always should be presumed."[34] Thus, when Theoharis and company were in the middle of fighting in court to obtain J. Edgar Hoover files, they may well have benefited from Landano and also Janet Reno's assertions of the government's need for "greater openness" and "discretionary releases" in 1993

In the case of Scott Armstrong v. Executive Office of the President, et al., the White House used the PROFS[15] computer communications software. With encryption designed for secure messaging, PROFS notes concerning the Iran-Contra affair (arms-for-hostages) under the Reagan Administration were insulated. However, they were also backed up and transferred to paper memos. The National Security Council, on the eve of President George H.W. Bush's inauguration, planned to destroy these records. The National Security Archive, Armstrong's association for the preservation of government historical documents, obtained an injunction in Federal District Court against the head, John Fawcett, of the National Archives and Records Administration and the National Security Council's purging of PROFS records. A Temporary Restraining Order was approved by Senior U.S. District Court Judge Barrington D. Parker. Suit was filed at District Court under Judge Richey, who upheld the injunction of PROFS records.Template:Sfnp

Richey gave a further injunction to prevent a purging of the George H.W. Bush's administration's records as well. On counts of leaving the White House clean for the new Clinton Administration, the Bush group appealed but was denied its request. Finally, the Clinton Administration appealed to the U.S. Court of Appeals, stating that the National Security Council was not truly an agency but a group of aides to the President and thus not subject to FOIA regulations. Under the Presidential Records Act, "FOIA requests for NSC [could] not be filed until five years after the president ha[d] left office... or twelve years if the records [were] classified."Template:Sfnp The Clinton administration won, and the National Security Archive was not granted a writ of certiorari by the Supreme Court on these grounds. According to Scott Armstrong, taking into account labor and material costs, the three presidential administrations spent almost $9.3 million on contesting the National Security Archive FOIA requests for PROFS e-mail records.Template:Sfnp

The AP uncovered several federal agencies where staff regularly use fictitious identities and secret or unlisted email accounts to conduct government business. Their use stymied FOIA requests.[35][36][37] In some cases, the government demanded enormous (>$1 million) fees for records that appeals show should be available for minimal cost.[35][37]

↑The enactment of Title 5 into positive law was done by Template:USStatute. This means that while Title 5 existed before, it was merely a compilation of laws but not the law itself. Only about half of the U.S. Code is positive law, meaning the law itself. See [1] for background on positive law codifiation of the U.S. Code.

Stanford Libraries FOIA archive - Preserved collection of sites that deal with Freedom of Information Act (FOIA) requests and documents. This includes government sites that receive and distribute FOIA documents (aka "FOIA reading rooms") as well as non-profit organizations and government watchdogs that request large numbers of FOIA documents on specific topics like national security and civil rights.